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Judges Question Tactics in Bronx Bomb Case

A panel of three federal appellate judges in Manhattan on Monday sharply questioned the government’s tactics in an undercover terrorism investigation that has already become a centerpiece in the debate over how the government uses informers in such sting operations.

The questioning came during oral arguments in the appeals of four men from Newburgh, N.Y., who were convicted in 2010 in a plot to blow up synagogues in the Bronx and shoot down military planes at Stewart International Airport.

The investigation had relied on an informer who had posed as a Pakistani terrorist and had spent months recording conversations with the men. But defense lawyers had claimed that their clients had been psychologically coerced into joining the plot, through offers of money and other rewards. The trial judge had also criticized the approach, saying, “The government made them terrorists.”

In the hearing on Monday, the three judges of the United States Court of Appeals for the Second Circuit peppered a prosecutor with questions about the informer’s role.

“Is there another case that you can talk about where the government’s level of involvement in creating and animating and realizing the offense was so all encompassing?” Chief Judge Dennis G. Jacobs asked.

The prosecutor, Adam S. Hickey, responded at one point: “What distinguishes this case, your honor, is not so much the involvement of the government, but the gravity of the criminal conduct.”

Mr. Hickey said the government’s role was primarily to remove “logistical hurdles” between the defendants and the crime. But Judge Reena Raggi responded, “I don’t think that’s all the government did.”

“It would be one thing if the defendant had conceived the crime and then, as obstacles arose, the government removed them. But I think you have to deal with the problem of the full circumstances here.”

“The government comes up with the idea, picks the targets, provides all the means, removes the obstacles,” she said.

The men were arrested in May 2009 after one, James Cromitie, with the others acting as lookouts, placed what the men thought were bombs outside two synagogues in Riverdale. The bombs were actually inert, but the jury heard evidence indicating that the men believed ball bearings had been used to make them more lethal.

The sting began in June 2008 after the informer, Shahed Hussain, met Mr. Cromitie outside a Newburgh mosque, and Mr. Cromitie talked about wanting to die a martyr and his interest in doing “something to America,” the government has said.

Mr. Hickey, the prosecutor, noted Mr. Cromitie’s statements, saying they were “reason enough for the F.B.I. to move forward with the investigation.”

He said that considering Mr. Cromitie’s remarks, and his enthusiasm “about wanting to commit a crime like this,” the government had “no choice but to follow up and reach the point where either the defendant walks away or we have some clarity about his character.”

Appeals judges often do not betray their views during oral argument, wanting to test each side’s positions as thoroughly as possible. The judges also had pointed questions for the defense, suggesting that the authorities did in fact have a valid reason to pursue an investigation.

“He’s quoted as saying at the first meeting he wanted to do something to America,” Judge Jon O. Newman said, addressing Mr. Cromitie’s lawyer. “Granted, it’s open-ended, but it’s cause for concern, I would think.”

The lawyer, Clinton W. Calhoun III, had argued that the case was “not so much about terrorism as about the power of the government, through a corrupt informer, to entrap its citizens in crimes they never would have committed if they had been left alone.”

Mr. Cromitie and his three co-defendants, Onta Williams, David Williams IV and Laguerre Payen each received 25-year sentences from the trial judge, Colleen McMahon, who, despite her criticism, had said the men were “prepared to do real violence.”

A version of this article appears in print on November 6, 2012, on page A21 of the New York edition with the headline: Judges Question Tactics in Bronx Bomb Case. Order Reprints|Today's Paper|Subscribe